Elbe v. John Hancock Mut. Life Ins. Co.

• Citation: 155 S.W.2d 302
• Decision Date: 04 November 1941
• Docket Number: No. 25616.,25616.
• Parties: ELBE v. JOHN HANCOCK MUT. LIFE INS. CO. OF BOSTON, MASS.
• Court: Missouri Court of Appeals

155 S.W.2d 302

ELBE v. JOHN HANCOCK MUT. LIFE INS. CO. OF BOSTON, MASS.

No. 25616.

St. Louis Court of Appeals. Missouri.

November 4, 1941.

As Modified on Denial of Rehearing November 18, 1941.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Action by Nettie Elbe against John Hancock Mutual Life Insurance Company of Boston, Mass., on a double indemnity clause of life insurance policy. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Robert E. Hannegan, Martin A. Rosenberg, and Gilbert Weiss, all of St. Louis, for appellant.

Jones, Hocker, Gladney & Grand, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action brought upon four insurance policies issued by defendant, John Hancock Mutual Life Insurance Company, upon the life of Henry Clay Elbe, in which plaintiff, his widow, is beneficiary. The action is brought under the double indemnity clause of the policies, which provides as follows:

"Upon receipt of due proof that the Insured after attainment of age 15 and prior to the attainment of age 70, has sustained bodily injury, solely through external, violent and accidental means, occurring after the date of this policy and resulting, directly and independently of all other causes, in the death of the Insured within ninety days from the date of such bodily injury, * * * the Company will pay in addition to any other sums due under this policy and subject to the provisions of this policy an Accidental Death Benefit equal to the face amount of insurance stated in this policy less the amount of any disability benefit which has become payable under this policy on account of the same bodily injury, except as provided below:

"If the bodily injuries referred to above shall be sustained by the Insured while engaged in employment in or on the premises of any open pit or underground mine, or shall be sustained by the Insured while on or about the premises or right of way of any steam or electric railway or railroad company while the Insured is following the occupation of gang, track, or roadway laborer; track walker; yard, freight, or mixed train brakeman, or flagman; the additional Accidental Death Benefit referred to in the first paragraph hereof shall be one-half of the face amount of insurance stated in this policy, less the amount of any disability benefit which has become payable under this policy on account of the same bodily injury. No Accidental Death Benefit will be paid if the death of the Insured resulted from suicide while sane or insane, nor if death is caused or contributed to, directly or indirectly, or wholly or partially, by disease, or by bodily or mental infirmity, or from having been engaged in submarine or diving operations, or in aviation as a passenger or otherwise, or from military or naval service in time of war."

The trial, with a jury, resulted in a verdict in favor of defendant. Judgment was given accordingly. Plaintiff appeals.

The insured was forty-eight years old and lived in St. Louis County with his wife and son. He was a robust man about five feet eleven inches in height and weighed about 185 pounds. Prior to his death he had never complained of being sick. He was an automobile mechanic by trade and worked at his trade until the day of his death.

August 16, 1936, was the fifth day of a heat wave, during which on the successive days the maximum temperature ranged from 100 to 104 degrees. On the 15th the maximum temperature was 104 degrees, and on the 16th between the hours of 3 and 5 p. m. the temperature was 100 degrees, according to the records of the United States Weather Bureau. It was an unusually hot and sultry day and there was no breeze.

Plaintiff testified that she had been married to insured for twenty-eight years up to the time of his death; that he was an automobile mechanic, worked regularly, had never been treated by a physician except ten or fifteen years before his death for a sore throat; that he had a ruddy complexion, was active in manner, good spirits, good appetite, and weighed around 185 pounds; that on Saturday, August 15, 1936, he went to work and worked a full day and made no complaint about his health; that on Sunday, August 16th, he got up around 7 or 8 o'clock, had his breakfast and repaired a screen door in the morning and in the afternoon painted the bathroom; that August 16th was very hot, and the bathroom was located on the north side of the house and was about eight feet square; that it was very hot and sultry and there was no breeze; that she noticed insured's clothes were wet and there wasn't a dry thread on him; that he finished painting the bathroom and went downstairs to take off his wet clothes; that he took a shower and put on dry clothes; that he then complained of feeling bad; that he asked for something cool to drink; that he had a peculiar color on his face, kind of grayish looking, and complained of cramps, and she assisted him in taking off his clothes and went upstairs to call a doctor; that he complained of an awful cold feeling, cold and clammy; that she took off his clothes, covered him with a sheet, put a pillow under his head, and heard a peculiar noise like drawing his breath hard; that she turned around and saw that he was unconscious; that the doctor arrived in about fifteen or twenty minutes; that the doctor gave him a shot in the arm and gave him artificial respiration for about ten minutes and then he died; that Dr. Waters, the attending physician, was not known to the family.

Leslie Elbe, plaintiff's son, testified that his father appeared to be in good health, a robust man; that he worked with his father in a garage, and that his father was at all times able to do his work; that on August 16th, which was an extremely hot, close day, and no breeze, he went to the bathroom where his father was painting around 4:30, and he was apparently in good health; that later his mother called him and he went over and his father was complaining of cramps and was perspiring very freely; that he called several doctors and finally got Dr. E. Burton Waters, who had never treated the family prior to this occasion; that after calling the doctor he returned to his father and found he was perspiring more freely and could not talk very well, and was putty colored.

Dr. Solon Harris, testifying for plaintiff, stated, on hypothetical interrogation, that in his opinion the insured suffered a sunstroke, or heat exhaustion, and that sunstroke was the direct and proximate cause of his death. He further stated that a man suffering from chronic myocarditis would have symptoms of that disease, such as shortness of breath, and pain once in a while; that he would not continue in a good state of health but would be ill; that heat exhaustion is not a disease; that a healthy man who is normal in every respect can have heat exhaustion and die; that they get so bad sometimes they even have convulsions; that heat exhaustion may be the primary or initial cause of death and the heart may be secondary; that heat exhaustion causes internal disturbances within the system, and such heat exhaustion is the direct and proximate cause of death.

Dr. E. Burton Waters testified, for defendant, that he was called to attend insured; that he found the insured kneeling on his knees and hands, fists clinched, and in great agony, and was cyanotic; that he administered a hypodermic and examined him with his stethoscope; that he seemed to hold his breath and gasped two or three times; that his heart action was comparatively slow, with a soft heart sound known as a slapping sound; that he turned him over and he relaxed and partially fell and was unconscious; that he did artificial respiration for ten minutes and he was dead; that he was perspiring and had a cold, clammy sweat, very profuse; that he pronounced him dead as due to coronary occlusion and chronic myocarditis; that myocarditis is usually associated with coronary occlusion; that in heat exhaustion a man does not go very rapidly unless he has some organic condition that plays a part.

Defendant put in evidence a verified statement of Dr. Waters made to defendant apparently as a part of the proofs of death, and also his certificate of death filed in the office of the Bureau of Vital Statistics, in which he set forth as the cause of death coronary occlusion and chronic myocarditis, and as a contributory cause of death heat exhaustion.

Plaintiff assigns error for the giving of defendant's instruction No. 4, as follows: "If the jury believe and find from the evidence that the insured's death was due both to a disease of the heart and to excessive heat and that the insured's death would not have resulted from excessive heat if the insured had not been afflicted with heart disease, then the court instructs you that the plaintiff cannot recover and your verdict must be in favor of the defendant."

The instruction is obviously erroneous. It in effect tells the jury that if insured's death was due both to a disease of the heart and sunstroke or heat exhaustion, and that his death would not have resulted from sunstroke or heat exhaustion if insured had not been afflicted with heart disease, then plaintiff cannot recover. Under this instruction, if a disease of the heart was a remote cause of death, though sunstroke or heat exhaustion was the direct and proximate cause of death, then death was...